'It was not the worst kind of rape': HIV+ Eastern Cape rapist appeals life sentence

By Philani Nombembe - 19 February 2019

The victim did not contract HIV, so it could have been much worse, says a rapist trying to overturn his conviction. Image: Gallo Images/iStockphoto

While the high court conceded that a rapist was intelligent, in its sentencing it showed it did not think his defense was particularly clever.

The 44-year-old HIV-positive man from the small Eastern Cape town of Patensie argued that it was not “the worst kind of rape” because his victim did not contract HIV.

TimesLIVE has withheld the man’s name to protect his victim.

The father of four, described in court documents as a “churchgoer”, appealed a life sentence he received for rape and housebreaking in the high court in Grahamstown this month. But a full bench of the court threw the book at him.

According to the judgment the man, who knew his victim and her husband – and knew the whereabouts of the husband the particular night – broke into their home and raped the woman while she lay next to her baby.

“[The man] crept on the bed, raping the [woman]. To do so, he strangled her to the extent that she had neck bruising injuries and despite her determined struggle fighting him off, [the woman] was subdued and overcome. The [man] also struck [the woman] hard on the right cheek with his fist, also injuring her. He also threatened to kill her if she told of the rape.”

The man committed the crimes while on parole. He was sentenced to 25 years’ imprisonment in 2002 for housebreaking and rape.

His counsel argued that had the court that sentenced him considered that the victim did not contract HIV, he could have been eligible for a 15-year sentence. The full bench heard that the man was not married and lived with his mother, is a qualified welder and earned R750 per week.

“He is a churchgoer and working when he can in second jobs for further income,” the court documents read. “Apart from his HIV status, he is in good health.”

The full bench was appalled by the man’s defense - and his claim that he had a relationship with his victim. The judges found that he did not show remorse for his actions. The fact that the man knew his HIV status when he committed the offence also sunk him.

“To aggravate matters, the [man] was deeply contumacious about what happened, his false and humiliating defense being that the [victim] consented to the admittance of intercourse as she was having an affair with him,” said Lowe.

“This put the [victim] through further pain and psychological trauma, she being obliged to deal with this deep dishonesty throughout the trial. This entirely deposes of any question of remorse on the part of the [man], he failing to explain what in fact happened at any time. A further issue is of course the pain and anguish the [victim] had to deal with arising from the very real possibility that she would be shown at a later date to have contracted a life-threatening condition becoming HIV positive or worse.”

The full bench found that the chances that the man could be rehabilitated were slim. It upheld the life sentence.